I’ve written about this in an earlier post and, since then, so-called “Stingray” technology has gone viral throughout police departments across the nation. The technology allows police officers to actually scan cell phone data in a target region. It does this by tricking cell phones into thinking that it is a cell tower and causing them to connect to it while they pass through the targeted area.

Police will tell you that the device can only obtain “meta data” such as numbers dialed, location, etc., but the technology fully supports the ability to actively monitor voice conversations and text message content. Government representatives insist that they are limiting their usage to avoid violating the law, but given the government’s track record on eavesdropping, who really believes that? Apparently not the Superior Court judges in Pierce County, Washington where, after reading news reports about the device, issued strict requirements to local police who intend to use the device. These judges understand the huge potential for abuse that is probably happening as we speak and they’ve taken action to get the police community to commit to what they are stating publicly regarding their usage of this technology.

I’ve said it before and I’ll keep saying it. We live in a police state in a post-privacy world. Our “reasonable expectation of privacy” has been replaced by the “reasonable expectation of criminality” held by police who see crime anywhere they look. With this kind of technology, they don’t have to look far anymore. They can hear anything you say, read anything you text, whether you are a suspect or not. If you happen to be near one of these devices installed in a police car some time, say hi and offer to go buy them some donuts.

Bad guys with guns pose a real danger to police, nobody denies that and we all want to keep police safe from harm. But that has never been, and never should be, a sufficient justification for violating the rule of law we live by embodied in our Constitution and protecting us from unwarranted illegal searches by police. That is not who we are as a nation and the further away we move from that principle, the closer we come to living in a police state. So how do you evaluate a technology that has the demonstrated ability to spot guns hidden on suspects, but which can be used by police to indiscriminately scan anyone to see what objects they’re carrying? Complicated question. But if we are true to the rule of law that governs us all, we cannot justify the use of a technology that has demonstrable benefits if it violates Constitutional guarantees. That is simply not how we operate.

NYPD is using a new technology known as “Tera Scanning” which provides officers with a device that scans a little used frequency in the light spectrum, and point the device at a person to see what light is reflected back and what light is blocked by solid objects. That’s a fancy way of saying that police now have what we can think of as portable X-ray machines that allow them to see hard physical objects we are carrying. It doesn’t use x-rays, that’s just my term to help make understandable what they are able to do and see. As you see from the picture above, the shape of an object can be detected without an actual physical search. This addresses objections to the NYPD’s infamous “Stop & Frisk” policy because there is neither a stop nor a frisk required. But let’s be real here, what police are doing can only be described as a “search” by any measure of that word. They are using technology to see things that the unaided eye could not, and they are seeing things that are in an area that everyone would agree carries a reasonable expectation of privacy. It’s a search, there’s no question about it. And the Constitution hasn’t changed just because technology has improved, a search still requires a warrant or the exigent circumstances that justify a warrantless search. That remains the law and hasn’t changed just because we’re better at searching.

Think about how police could use this. They could point it at anyone walking the streets in Ferguson, Missouri to see if they’re carrying a gun. But by doing this, they will also see other things we are carrying, everything from a camera or digital recording device, to a colostomy bag or a hypodermic syringe. However you may feel about the tradeoff between security and liberty, the rule of law we live by and founded in our Constitution, prohibits warrantless searches and the fact that a search is less invasive does NOT make it any more legal or morally justified. I think that cops should be able to use this kind of technology when they have the legal authority to search, and in no other situation. If they’re not allowed to search because they have no warrant or exigent circumstance justifying the lack of a warrant, then this new technology isn’t going to change that fact.

Most of us will remember how police found Boston bombing suspect Dzhokhar Tsarnaev hiding in a boat. Police found Tsarnaev using helicopters equipped with thermal imaging sensors that can “see” heat signatures that reveal the presence of warm things (like a human body hiding under a tarp in a boat). The technology is expensive and has been thus far mostly limited to public rescue planes and helicopters. But thanks to a new grant from Homeland Security, local police all around the country are now able to get their police cars equipped with these new gadgets and see thermal images projected right on to their police car laptops.

The United States Constitution does not authorize the formation of a National Police force, and law enforcement has been a local responsibility ever since the founding of the country. But what the federal government cannot do directly, it manages to find a way to do indirectly, through the justification of “national security”. The Department of Homeland Security has been providing local police with a wide assortment of new technologies and toys ostensibly designed to protect us from terrorists, and that’s of course what gets all the attention, but police are not waiting around for terrorists to show up after getting their squad cars all juiced up. Not surprisingly, they are finding other uses for the technology and that means they are using it on you and me.

Thermal imaging is really being used for one primary purpose: to find people where the human eye could not ordinarily see them. This means that in places where ordinary people would have a reasonable expectation of privacy, police are able to easily invalidate that expectation by using surveillance tools that abolish reasonable expectations. They can “see’ where people would not reasonably expect to be seen. What’s the problem with that, you say, if criminals are hiding? The problem is that police are NOT going to limit their surveillance to manhunts for terrorists on the run, they are going to drive around peeking into every dark corner they encounter, looking to see what they can see. Laying in a field of grass with your loved one watching a moonrise? Standing on your balcony at night watching the stars? You may have nothing to hide, but it’s still unsettling to know that your image might be under surveillance on some police car computer screen. The threat of “Big Brother” may seem cliché and trotted out way too often, but it’s a fact that we are rapidly losing every last shred of privacy we once thought we had by virtue of what is effectively becoming a National Police force funded by the federal government. It’s not a conspiracy, it’s a demonstrable and factual reality and you and I are paying for it.

No one can doubt that sexual crimes against children are among the most horrific imaginable. And given the obsession that lawmakers have with sex crimes and the punishment of anyone associated in any way with them, it’s not surprising that the market has responded with the creation of new technologies designed to help catch the people involved in Internet child pornography. A Swedish company has been quietly amassing a huge database of over 400,000 images and videos of what purports to be child pornography. They don’t clarify how they define this or how they determine if the original photos are of real children or simply digital creations, but they have combined forces with Microsoft’s “Digital Crimes Against Children” group (did you know that Microsoft had such a group?) and produced something they call “PhotoDNA”, designed to help law enforcement catch the bad guys creating, distributing and viewing this stuff.

The goals are laudable, but because this is a one-side effort (Microsoft makes this available to law enforcement only, and not to the defense), there is no way for an objective observer to determine the answer to many critical questions. Capitalizing on public perceptions that DNA is infallible and scientific, the name alone creates presumptions that cannot be tested by the defense. The technology purports to identify a photograph’s “digital fingerprint” based on a hash algorithm which can then be applied to other suspect images to see if the suspect image is derived from, or identical to, the original image. Here’s what Microsoft says about the process:

“PhotoDNA uses a mathematical technique known as robust hashing that works by calculating a unique signature into a ‘hash’ that represents the essence of a particular photo. In the same way that the characteristics of every person’s DNA are different, the signature or ‘hash value’ for every photo is different, enabling the creation of a hash that can identify an image based on its unique characteristics or its ‘digital DNA.’ Although a photo’s hash cannot be used to re-create an image or identify people or items within an image, it can be compared with hashes of other photos as a reliable way to match two different copies of the same image”.

Several important questions arise. Have scientific validation studies been performed that have produced a reliable error rate for this technology? Even a DNA scientist will tell you about error rates. It is impossible to judge the value of a given technology without knowing the error rate produced when that technology is used in the field. Second, the technology claims to identify an image as originating with another image based on the similar hash value, but how do we know that the original image is authentic? What if that original image was photoshopped to begin with? And since this whole thing is driven by Microsoft software, does anyone really believe that the software implementation of the hash algorithms are 100% bug free?

The problem is compounded by the fact that neither Microsoft nor NetClean makes any of this technology available to the defense, just to law enforcement. Why on earth would anyone interested in getting at the TRUTH want to withhold from the only community that is charged with keeping the government honest? It’s shameful when companies discriminate against the defense and demonstrate their indifference to the real, well-documented reality that innocent people ARE convicted of crimes they did not commit. That’s what real DNA has taught us. This faux DNA, that seeks to ride the coattails of real science, is a good start at helping eradicate a very real problem in our society, but it becomes dangerous when its advocates refuse to shine the harsh light of scientific scrutiny on it. What are they afraid of?

The American Bar Association is not a governmental licensing agency with jurisdiction over lawyers, that function is left to the individual states bar associations. But the ABA is a very influential organization that often drafts rules and opinions that wind up getting adopted and followed by many state organizations. So when they ruled that lawyers can ethically search the Facebook sites of potential jurors for information about the leanings of these potential jurors, that got some attention.

The ABA’s opinion is not binding on any state bar association (and it in fact is in conflict with at least one, the New York Bar Association), but it is likely to be cited by many states as a bellwether of inevitable change that should be adopted around the country. After all, if the goal is to get the truth from jurors about who they really are (as opposed to what they say in court in order to convince lawyers that they are “fair and impartial”), what could be more useful than hearing what these people have posted to the world about themselves?

This does not open the way for lawyers to surreptitiously “Friend” jurors or to engage in messaging with them, those practices are still prohibited. But passively reading what these potential jurors have said about themselves, their political opinions, and so on, is bound to be of great interest to every lawyer picking a jury. Expect to see whole new business start up with the goal of providing a Social Media profile of potential jurors.

You would *think* that police dash cam videos would be valuable evidence that police would want to make available to defense attorneys to validate claims made by police about what actually happened during a police stop. But that would only be true if police were confident the videos would actually confirm what they’re saying. So, when Public Disclosure Act requests were filed requesting release of these videos, police withheld them on a variety of, frankly, ludicrous grounds. The case went all the way to the Washington Supreme Court, which ordered police to turn them over and let the chips fall where they may. Not surprisingly, a lot of the chips are not falling in the direction police had hoped. You can read about the Court’s ruling here.

This strange episode follows a history of other bizarre reports out of Seattle PD regarding their video footage. In 2012, after requests for video footage the Seattle PD reported that they “lost” over 100,000 videos. Hey, we just “lost it”, sorry. Amazingly, they didn’t lose any of the videos that prosecutors presented in court to prosecute and convict defendants at trial during that entire period of time, just the ones sought in the requests that led to this “discovery”. You can read about that episode here. After you catch your breath, think about the implications of a government that is watching every move we make and criminally prosecuting us but turning over only those videos that they choose to.

Ok, conspiracy theories aside, let’s face it. We are all under constant surveillance by someone, somewhere. If it’s not police, it’s the business establishments in the area, the ATM across the street, the apartment complex next door, or just bystanders using their cell phones to capture anything that’s going on in the area. It’s hard to imagine any public event that has not been captured somewhere on video. And given the great reliance we place on a record, particularly in “he-said, she-said” disputes, these video accounts are just going to become more and more valuable over time. It’s frankly very distressing that police have to be taken all the way to the Supreme Court to be ordered to turn over these public records that they keep on us. Who exactly do they think they are working for?

It’s a comment on modern reality that we are all getting used to the sight of video surveillance cameras in virtually every public space. It’s a well-worn cliché to comment on “Big Brother” but there’s nothing hyperbolic about it, we are there and we have essentially moved into a post-privacy world where every movement we make is likely being monitored and watched by someone, somewhere. We can debate the value of this trade off between security and privacy, but we cannot deny that we’ve made the bargain.

And now you can add audio surveillance to the mix. The newest technology being added, ostensibly for “crime-fighting” purposes, is called “Gunshot Detection Systems” and it involves the placement of a lot of microphones all around us so that in the event someone, somewhere might shoot off a gun, listeners will be able to triangulate the source of the gunshot and locate the shooter, who is presumably someone doing something wrong. But as is clear from users of the technology, the system not only picks up gunshots, it hears the sounds we make and the words we speak. Big Brother got some powerful ears.

If you’re a gun rights advocate, you will probably not like hearing that every gunshot you fire will now be known to the government. If you are anti gun, you may find this system appealing, but keep in mind that a government that spends its time and money watching everything we do and listening to everything we say on the off chance that we might be doing something illegal, is a government that is NOT governing at all. This is almost the definition of a police state, and it is one of the final steps in the complete transformation of our culture from one that is endowed with “inalienable” rights that include privacy from unreasonable governmental intrusion, into one in which the “unreasonableness” becomes linked to any desire for privacy. Somewhere, things got reversed, and our very liberty, our freedom to be private, has been sacrificed.

As Benjamin Franklin famously said, “Anyone who gives up their liberty for a little security, deserves neither”. There are good reasons our Founding Fathers felt this way and attempted to limit the government’s ability to monitor us. It’s not like they weren’t aware of crime, crime has always existed. But even then they were able to articulate and write into the Constitution a need for “probable cause” as a pre-requisite for governmental searches; they would not have been ok with “Gunshot Detection Systems” or ubiquitous video surveillance. The “reasonable expectation of privacy” has now apparently been replaced by a “reasonable expectation of criminality”

I’ve posted regularly on this topic, but one thing that is worth repeating is this link to a book chapter I authored on the subject of “Defending Internet Child Pornography“. The chapter provides a good overview of the technological issues that are implicated in the typical Internet child pornography legal case. The book was targeted at lawyers who defend these cases but I wrote the chapter with no computer or legal sophistication expected from my audience because I know that most lawyers have no clue about the technology behind this, so it’s an easy read.

Last week the Department of Justice announced the arrests of 71 persons, including a cop, a rabbi, a scoutmaster, and other high-profile, high-trust individuals, in what has been billed as one of the largest Internet child pornography stings in history. The news of who is alleged to be involved in the conspiracy is old news to people in legal circles but seems to come as a shock to others. Why, I don’t know.

Many people seem to believe that people who view child pornography are “sick”, that’s the term that is always trotted out to describe them, but what does that mean? Well, most psychologists would agree that people who fantasize about child sex and then go the further step of acquiring child pornography to aid in these fantasies, can indeed be classified as having sexual pathologies defined as mental illnesses. But in my experience representing the people who get arrested for this crime, these clients do not fit the stereotype of the drooling predator. And the fact is, the vast majority of them will never make physical contact with a child. It’s pure fantasy and their own special form of self medication for the anxieties that typically prompt them to depart from the realm of fantasizer, to actor. Still, it is a crime to take that step and the rationale driving criminality is simple and straightforward: pursue the product, and you create demand which ultimately creates the horrible crimes behind the camera. At its heart, it’s an economic argument, a supply-and-demand function. But because we are a nation obsessed with sex, we put many resources into stopping this particular type of crime.

The technology used to catch users of Internet child pornography is sophisticated and ubiquitous. And the people pursuing it are well funded, well organized and tenacious. It starts with virtually every Internet Service Provider (ISP) in the US, where there often will be found entire business divisions devoted to tracking the content they host to keep an eye out for “contraband” (code for “child porn”). Microsoft has one of the largest and most sophisticated groups. These folks scan all content they host, looking for “contraband”, and other major hosts (Google, Yahoo, etc.) do the same. When they find it, they report it to the National Center for Missing and Exploited Children (NCMEC), a group popularized by the TV show “To Catch a Predator”, and the driving force behind the “Adam Walsh Act”, a federal suite of criminal statutes that ranks child pornographers just below mass murderers in severity of punishments.

When NCMEC gets a reported violation, they refer the matter to local law enforcement officials who then get subscriber information (without a warrant). NCMEC tracks individual images of every actual child involved in child porn and if they confirm that an image somewhere is in their database, that information will go into a search warrant that local cops will use to show up one day, unannounced, at your door with search warrants and a team of forensic cops who will seize every “computing device” in your home (in the NY bust, over 600 “computing devices” were seized).

The facts are simple. If any child pornography is passing through your Internet stream at home, at work, on to your computers, or even just viewed on your computer, there’s a good chance that NCMEC will find out about it and that it will be reported to police. The next thing you know, police could be knocking your door down with search warrants. Don’t take the chance to “satisfy your curiosity”, it’s not worth it. You WILL get caught, and you will wind up paying someone like me a lot of money to defend the charges. Many of you will be innocent of any criminal intent, some of you will be accidental acquirers of content. One of my clients was even employed by Microsoft as one of their content scrubbers and he was wrongly arrested because he was working from home (his charges were dismissed after two years and a lot of legal fees).

We can argue the merits of devoting this much effort toward these crimes, but you cannot deny the reality that most people who succumb to the temptation are walking a very dangerous path and tempting fate. Your best bet at beating an Internet child pornography charge is to avoid it in the first place. If you see it, leave immediately, delete any images (even if they remain, your actions to promptly delete will provide evidence of your intent not to possess it), and stop going to the sites that provide it. If you do wind up getting visited by cops with search warrants, call a lawyer. Immediately. You’re going to need one.

For as long as I can remember, it has been the policy of the federal government to prohibit its agents from electronically recording interviews with criminal suspects in custody. Why on earth would they want to avoid having these interviews recorded? It’s simple, to avoid the truth. There is no other credible answer and no good argument against creating an accurate record of what goes on during these interrogations. At trial, federal agents have been coming into court and testifying under oath that defendants made incriminating statements which these suspects would often deny, resulting in a “he-said, she-said” swearing contest between the cops and the defendant. Guess who usually wins that one?

When asked to record these interviews, agents have vehemently resisted, claiming various reasons such as cost, privacy rights, and other flimsy excuses that really boil down to “We don’t want the truth revealed”. There is no other good reason. And ultimately, the United States Department of Justice has come to recognize that there in fact is no other reason other than “it benefits the defendant at trial”. Well, think about that. Why would it “benefit” the defendant at trial to have an accurate recording of what was actually said if the agents are telling the truth about what was said in the first place?

State courts have been far ahead in this trend and I often get audio or video recordings of my client interviews as part of discovery. What we’ve all learned from this practice is that it actually reduces unnecessary litigation over challenges to the integrity of the process, and gives everyone a more fair playing field. And with the cost of digital audio recorders being dirt cheap these days, there really isn’t any good excuse any longer to avoid taking this extra measure to assure accuracy.

According to unidentified sources talking to the press, the DOJ is currently circulating a memo (the “Cole Memo”) which instructs federal agents with the FBI, DEA and ATF to begin recording all custodial interviews with suspects in all but a few exceptional cases (of course, “National Security” is one of the enumerated exceptions). Field agents are largely opposed to this practice and it’s not surprising why. What is surprising is that the Department actually acted to implement a systemic change that gives the entire criminal investigative process a little more integrity. Good for them!

Defensology is aimed at general audiences interested in issues affecting the use of technology in criminal investigations and prosecutions. The perspective of the author is that of a criminal defense lawyer, without apology.

Defensology is maintained by Robert Perez, a criminal defense lawyer based in the Seattle area of Washington State. Robert is proud to defend liberty and freedom and restrict the ever growing reach of an intrusive government. Fight the Power.